Official Report 109KB pdf
Instruments Subject <br />to Annulment
Building (Procedure) (Scotland) Regulations 2004 (SSI 2004/428)
No points of substance have been identified on the regulations, but there is a minor point about their vires.
Mental Health (Advance Statements) (Prescribed Class of Persons) (Scotland) (No 2) Regulations 2004 (SSI 2004/429)<br />Mental Health (Patient Representation) (Prescribed Persons) (Scotland) (No 2) Regulations 2004 (SSI 2004/430)
No points of substance have been identified. The two sets of regulations replace both the Mental Health (Advance Statements) (Prescribed Class of Persons) (Scotland) Regulations 2004 (SSI 2004/387) and the Mental Health (Patient Representation) (Prescribed Persons) (Scotland) Regulations 2004 (SSI 2004/388), which were made to come into force three days before the relevant substantive powers were commenced. The Executive agreed with the committee that that raised doubts as to whether the instruments were intra vires. The Executive therefore decided to revoke and remake the instruments to put the legal position beyond doubt. Is that agreed?
Genetically Modified Food (Scotland) Regulations 2004 (SSI 2004/432)
There are a few points to raise on the regulations. The committee might wish to ask the Executive why section 9(7) of the Food Safety Act 1990, as applied by regulation 6 of the regulations, does not provide that operators are to bear the expense of the detention of food under section 9(3) of the act when the detention provisions of section 9(3) appear identical to those under section 9(2). That can be clearly seen in the regulations. The Executive might also be asked to explain why section 9(7) refers to the "detention" of food, whereas sections 9(2) and 9(3) make no such reference, but instead refer only to the seizure and removal of food.
I am sorry that I am late. There was a tailback of about 6 miles at one point.
We heard it was 8 miles.
Even by the standards of the M8, it was worse than usual.
Are there any further points on the regulations?
I agree with what you have said, but I want to highlight one point, which appears in paragraph 20 of our legal brief:
Absolutely. We will include that point in our comments. There are also questions of late implementation and of a failure to cite the consultation requirement under article 9 of EC regulation 178/2002. Is it agreed that we put those points to the Executive?
I welcome Adam Ingram, who has just joined the meeting.
I notice that you have commented on the lack of mention of the consultation process in relation to several statutory instruments. Could you tell me a little bit about that? The matter has caused concern in the past, but the committee's raising it does not seem to be achieving anything.
That is one of several issues that we continually take up with the Scottish Executive. As I recall, our most recent decision was to arrange another meeting in the not too distant future so as to get a progress report on the various issues that we have raised. You have just mentioned consultation; there are also the matters of transposition notes and consolidation. As you are new to the committee Adam, it might be helpful if I were to get Alasdair Rankin, the clerk, to give you a list of the on-going issues.
That would be helpful, thank you convener.
That is no problem. We agree on the points relating to the Genetically Modified Food (Scotland) Regulations 2004 (SSI 2004/432).
Genetically Modified Animal Feed (Scotland) Regulations 2004 (SSI 2004/433)
We might consider asking for an explanation as to why regulation 7(2)(h), on page 4, spells out the title of the current regulations in full, whereas subparagraphs (b) to (f) of regulation 7(2) refer simply to "these Regulations". That is just a tidying-up point.
I have no problem with asking the Executive for its explanation of that. As always, there might be one. I am a great believer in just asking the first time and then telling the Executive that it is wrong once we have received the answer.
The legal advisers have mentioned some recurring points, which have come up on previous, related instruments. Do we agree to put those points to the Executive?
International Criminal Court (Enforcement of Fines, Forfeiture and Reparation Orders) (Scotland) (Revocation) Regulations 2004 (SSI 2004/437)
No points of substance arise on the regulations, but members will remember the history of these regulations. We were very unhappy about an instrument that raised issues relating to the vires of legislating to appoint the Lord Advocate as the person to enforce orders of the International Criminal Court in Scotland, and we made representations directly to the Justice 1 Committee. These regulations revoke that instrument, so we await with interest what happens next.
Genetically Modified Organisms (Traceability and Labelling) (Scotland) Regulations 2004 (SSI 2004/438)
No points of substance arise on the regulations, but the legal advisers have given us some information about enforcement and the prosecution of offences. Do members wish to add anything?
Genetically Modified Organisms (Deliberate Release) (Scotland) Amendment Regulations 2004 <br />(SSI 2004/439)
No points of substance arise on the regulations, but questions arise again over the omission of a reference to article 9 of EC regulation 178/2002, and over the late implementation of EC legislation.
Plant Health (Great Britain) Amendment (Scotland) Order 2004 (SSI 2004/440)
Members will note with interest that consolidation of plant health legislation is being worked on. I gather that it should come to fruition in March; I am sure we will look forward to that.
Bringing plant health consolidation to fruition? I take it that you did not mean that pun, convener. I take it that it was an accident.
Yes, it was. Are there any other points?
Debt Arrangement and Attachment (Scotland) Act 2002 (Transfer of Functions to the Accountant in Bankruptcy) Order 2004 (SSI 2004/448)
I think that Stewart Maxwell wanted to raise some points on the order.
Our legal advice lays out clearly that we should ask the Executive why article 4 is considered necessary given the existence of section 1B of the Bankruptcy (Scotland) Act 1985. It seems confusing; I am certainly confused as to why on earth the Executive has bothered with the article. There is no obvious explanation, in the order or anywhere else. As far as I can see, it makes no sense. However, as Gordon Jackson would say, perhaps we should just ask the Executive, and perhaps get an answer.
Christine May has apologised for having to go to another meeting but, if here, she would have said that transposition notes were an on-going issue—which links in with what Adam Ingram said. From our legal advice, I gather that there is confusion over whether we are talking about wild birds in general or only wild birds in captivity. Oh. Sorry.
We are on the Debt Arrangement and Attachment (Scotland) Act 2002. As far as I am aware, wild birds are not involved.
I am sorry; I had jumped ahead.
Avian Influenza (Survey Powers) (Scotland) Regulations 2004 (SSI 2004/453)
All right, now we really will move on to the Avian Influenza (Survey Powers) (Scotland) Regulations 2004 (SSI 2004/453). An issue arose over the definition of the word "person"; and, on transposition notes, confusion arose over whether we were talking about wild birds in general or only those in captivity. Transposition notes are an on-going issue.